Sexual harassment must be prohibited under industrial law to drive real workplace change

It’s a year since the stories of now-disgraced Hollywood producer Harvey Weinstein first began to hit the headlines.

The #MeToo movement spread like wildfire, fuelled by stories of lecherous bosses, creepy colleagues and lingering customers. The campaign gave us a moment of solidarity, but it also showed us despite having legislated against sexual harassment three decades ago it remains alive and well.

Before #MeToo a comfy assumption had settled in that things had improved. Sexual harassment was considered a thing of the past — a chauvinist boss in an office thick with cigarette smoke leering at the young typist or patting the bum of the tea lady.

Yet Bureau of Statistics data indicates one in two women, and one in four men, will be sexually harassed in their lifetime. And the bulk of it happens at work.

Obviously, this is a problem that disproportionately affects women, and while there are complex gender politics issues at play, I approach this problem primarily as a unionist. If we want to address sexual harassment we must treat it as a health and safety issue and explicitly outlaw it under industrial law.

The legal definition of sexual harassment has remained stable over the years. In short, it is unwelcome conduct, of a sexual nature, where it is reasonable to assume the person on the receiving end would be offended, humiliated or intimidated.

It need not necessarily be malicious behaviour, and while some claim this bans flirting, the assumption is people should be able to recognise when their attention is unwanted and the recipient is uncomfortable.

The current system puts the onus on the victim, because it is seen as an anti-discrimination issue rather than a safety issue. It is costly, slow and reactive.

The way employers typically handle complaints is informal, temporary and targeted at the immediate problem, rather than the systemic one.

Employers have no obligation to prevent their workers from being harassed. While policies, procedures and training are commonly in place, they are clearly not delivering the shift in the culture we need.

Worse still, those who complain are often victimised. An Australian Human Right Commission (AHRC) study found 43% of those who made a complaint were ostracised, victimised, ignored or coerced to resign.

Of course, most do not complain. Nor will those who witness it.

Yet if we continue to treat sexual harassment prevention as an exercise in compliance we are effectively reducing it to a meaningless gesture.

There are simple ways this can and should change.

Currently, SafeWork NSW classes bullying as a health and safety issue and refers it to Fair Work. This is not the case for sexual harassment. That means sexual harassment complaints can’t be pursued within the no-costs jurisdiction of the Fair Work Commission.

SafeWork NSW instead sends sexual harassment complaints to the AHRC, which has limited scope to investigate them. Complainants are unlikely to see a result because under anti-discrimination law there are no penalties for those who harass others. Essentially, there is little incentive for employers to take action to prevent sexual harassment.

This skews the system toward those who can afford to pay legal fees and have the strength and energy to pursue a complaint through the courts. Unions NSW is calling on the government to reform the Fair Work Act to explicitly outlaw sexual harassment.

We should also reform work health and safety legislation to explicitly include sexual harassment as a health and safety risk that employers and the regulator have an obligation to prevent and manage.

This obligation would require employers to take active and positive steps to prevent and reduce the risk of sexual harassment, firmly shifting the burden away from individuals needing to report and deal with sexual harassment.

Unions should be empowered to investigate and prosecute breaches of sexual harassment legislation. The feeling of degradation it brings to those who experience it can be pervasive and inescapable.

We no longer accept unsafe workplaces. Sexist, bigoted and degrading behaviour should be considered just as intolerable under industrial law.

What do you think? Should health and safety legislation include sexual harassment as a health and safety risk? Let us know in the comments or at [email protected]

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